Fisher v. University Texas and the matter of deference

Today’s Supreme Court’s decision in Fisher v. University of Texas is based on a distinction between the type of deference that courts can grant to universities that use racial preferences in admission. Fisher does not upset past rulings that courts must defer to “a university’s judgment that [a diverse student body] is essential to its educational mission.” Thus, Court’s will continue to defer “to the decision to pursue the educational benefits that flow from a diverse student body.”

But Fisher holds that judicial deference to the university’s judgment about preferential admissions does not extend much further (if further at all) than upholding a university’s general conclusion that “a diverse student body would serve its educational goals.” The Court demands “careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classification” (emphasis added). In conducting this careful inquiry, courts will not defer to “a university’s consideration of workable race-neutral alternatives.”

Rather, the “reviewing court must be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity.” The university bears the “ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

What does this mean, as a practical matter, in the context of litigation over race-based admissions policies? It’s clear enough that, if challenged, a university will have to show that no race-neutral plan would have resulted in “sufficient diversity” to “produce the educational benefits of diversity.”

But will courts defer to a university’s judgment as to what constitutes sufficient diversity for that purpose? As I read the Fisher opinion, the answer is no, although this isn’t completely clear. Moreover, the Court’s past jurisprudence (cited in Fisher as well) indicates that a university cannot answer the question of what constitutes sufficient diversity by citing a specific percentage or other number. That would look too much like a “quota.”

So is the trier of fact in a challenge to a university’s racial preferences in admissions now required to decide, without deferring to the university and without relying on specific percentages, how much minority representation is needed to achieve the benefits of diversity? And will this be decided through a classroom-by-classroom analysis?

As much as I oppose race-based admissions policies, I tend to agree with the court that upheld the University of Texas’ plan to this extent — courts are “ill-equipped” to make these kinds of judgments. But I also believe that racial discrimination cannot be upheld out of deference to the assertions of those (including universities) who engage in it, even if they are acting “in good faith.”

Thus, if we’re going to have a regime in which race-based admissions are tolerated under some circumstances (and that’s still the regime after Fisher), deference to judgments of universities that use such admissions should be limited to its judgment that diversity is worth pursuing

The real question, though, is how reviewing courts will react to and interpret the Fisher decision’s discussion of deference. The answer is likely to depend, to a considerable degree, on how the reviewing court feels about race-based preferences. But a sense of judicial modesty when it comes to assessing complex educational issues may create some bias in favor of deferring to the expertise of universities to a greater degree than Fisher seems to contemplate.

In any event, litigating these cases will probably be engaging enough to make me consider (however briefly) coming out of retirement.